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Vosburgh v. American National Red Cross

United States District Court, N.D. New York

September 29, 2014



LAWRENCE E. KALM, District Judge.


Plaintiff Cheryll Vosburgh ("Plaintiff") commenced this employment discrimination action on June 20, 2008, against the American National Red Cross (the "Red Cross" or "National"), the American Red Cross of Tompkins County (the "Chapter"), Jennifer Yarbrough ("Yarbrough"), Cynthia Gordineer ("Gordineer"), Dawn Darby ("Darby") (collectively, "Defendants"), and several other Defendants who have since been dismissed. Dkt No. 1 ("Original Complaint"); see also Docket. Presently before the Court is Defendants' Motion for summary judgment. Dkt. No. 140 ("Motion"). For the following reasons, the Motion is granted in part and denied in part.


A. The Chapter

The Chapter is a unit of the Red Cross, a charitable organization that provides domestic disaster relief, as well as services to the poor and underprivileged. Dkt. No. 141 ("Defendants' SMF") ¶¶ 13-14. The Chapter relies on volunteers to carry out its mission. Id . ¶ 16. The Chapter is governed by an unpaid Board of Directors (the "Board"). Id . ¶ 18.

B. Plaintiff's Employment

The exact nature of Plaintiff's position at the Chapter is disputed by the parties. According to Defendants, Plaintiff began working at the Chapter in July 1995 as the Resource Development and Communications Director. Defs.' SMF ¶ 21. When Plaintiff came to the Chapter, she was interested in a human resources position, but her initial position also included responsibilities related to development, public relations, and communications. Id . ¶ 23. From 2007 to 2008, Plaintiff's title was Director of Human Resources, Development and Communications ("HR and Development Director"). Id . ¶ 24.

According to Plaintiff, although she first came to the Chapter to fill the Resource Development and Communications Director position, her title was promptly changed to Director of Human Resources, Development and Communications. Dkt. No. 159 ("Plaintiff's Affidavit") ¶¶ 6, 12. This change was made to clarify that the position's "resource development" duties meant "human resources and fundraising." Id . ¶ 12. Her job title remained the same for the rest of her tenure at the Chapter. Id.

The position summary for the HR and Development Director stated that the position's overall purpose was "to oversee the completion of all work related to public relations, financial development, and human resource administration." Defs.' SMF ¶ 26. In terms of financial development responsibilities, the position called for being responsible for "the development and management of the overall development budget and work plan, " overseeing "the development, direction, and implementation of the Chapter's annual fund raising campaign, " including "mail and telemarketing campaigns, " and "grant solicitation and emergency disaster relief appeals." Id . ¶ 28.

According to Plaintiff, the meaning of "financial development" in the context of her position was narrow. Pl.'s Aff. ¶ 16. Her responsibilities included ensuring that an annual mail campaign was conducted, special events were held, and, in one case, a grant was completed and submitted. Id . Plaintiff emphasizes that the Chapter had more than one revenue generating department, as Health and Safety was responsible for funding its own department with revenue generating activities. Id . Additionally, three other departments raised program funds through their own grants. Id . According to Plaintiff, the Executive Director was responsible for grant writing, solicitation of major donations, and planned giving. Id . The Board was also responsible for fundraising. Id.

With respect to human resources, the written job description called for Plaintiff to be responsible for the "development of volunteer and paid staff to meet the personnel needs of the Chapter programs and services, " including assuring "the integrity of personnel policies and contract provisions, " "widespread attention to and use of volunteers in all areas of management and service delivery, " and maintenance of personnel files. Defs.' SMF ¶ 27. Plaintiff claims that the human resources needs of the Chapter grew significantly over time, but she was not provided with any additional support to fulfill the increasing responsibilities. Pl.'s Aff. ¶ 18.

The job description for Plaintiff's position provided that Plaintiff would spend 40% of her time on financial development, 10% of her time on public relations/communication, and 50% on human resource management. Defs.' SMF ¶ 25. Plaintiff does not dispute that the written job description provided a 50%-40%-10% time allocation, but states that in practice her job priorities were quite different. Id . ¶ 14. When there were competing priorities, Plaintiff took direction from the then-Executive Director, Charles Nocera ("Nocera"), as to how her time should be spent. Id . Plaintiff states that she, Nocera, and the Board all became aware that the demands of Plaintiff's position had grown over the years and could no longer be filled by one person. Id.

C. Revenue Concerns

In 2005, the Board was concerned that the Chapter's revenue was too low. Defs.' SMF ¶ 29; Pl.'s Aff. ¶ 22. According to Defendants, the Board believed that the Chapter's administration costs were too high given the Chapter's relatively small size. Defs.' SMF ¶ 30. As of 2005, other chapters had begun taking advantage of a Red Cross initiative that offered regionally-shared administrative services for finance and human resources. Id . ¶¶ 31-32.

According to Plaintiff, as of 2005, the Red Cross had begun providing support to Chapter staff by answering questions, making suggestions, or helping to "problem solve, " but did not offer or provide any administrative services for finance or human resources. Pl.'s Aff. ¶ 26. The Chapter's senior staff did not learn of the plan to provide shared administrative services until 2007. Id . Furthermore, the regional services that were to provide support to the Chapter were shut down in April 2008. Id.

D. Reorganization Task Force

In 2005, the Chapter created a reorganization task force to evaluate how the Chapter might run more effectively and efficiently. Defs.' SMF ¶¶ 35-37. One of the Task Force's concerns was that the Chapter's revenue stream was not keeping up with increasing expenses. Id . ¶ 38.

Early in the task force's evaluation, its members considered substantially altering Plaintiff's position by creating a separate director of development position, leaving Plaintiff responsible for human resources and youth services. Id . ¶ 39. However, the task force determined that creation of a full-time development position at that time was not financially feasible. Id . ¶ 46.

According to Defendants, a November 2006 performance appraisal of Plaintiff by Nocera included various criticisms in relation to her development responsibilities. Id . ¶¶ 50-52. It also noted that Plaintiff's job description, along with that of all senior staff, would be revised during the 2007 fiscal year to reflect the recommendations of the reorganization task force. Id . ¶ 49. Plaintiff states that the 2006 performance appraisal, read in context, was overall positive. See Pl. Aff. ¶¶ 64-68.

E. Gordineer

While Nocera was Executive Director, the task force's recommendations, including possible changes to Plaintiff's position, were not implemented. Defs.' SMF ¶ 53. Nocera was fired in May 2007. Id . ¶ 54. While the Chapter searched for a new Executive Director, Gordineer, who was then the CEO for the Southern Tier Chapter, was designated as the Interim Executive Director, a position she held from May 5, 2007, until December 2, 2007. Id . ¶ 55. The Board informed Gordineer that during Nocera's tenure, the Board had considered restructuring to address a lack of fundraising. Id . ¶ 56. Gordineer reviewed the Chapter's 2006 Field Evaluation System-Chapter Performance Standards Scorecard ("2006 Scorecard"), which she believed highlighted many areas in need of improvement, including financial development and fundraising. See id. ¶¶ 57-66.

Plaintiff states that although Gordineer was appointed Interim Executive Director, she retained her position as CEO of the Southern Tier Chapter and only visited the Tompkins County Chapter twenty-two times during her entire tenure as Interim Executive Director. Pl.'s Aff. ¶ 74. Plaintiff also states that the 2006 Scorecard was initially inaccurate due to Nocera's failure to send data to National Headquarters. Id . ¶ 82. When Gordineer brought her concerns about the Scorecard to the staff, they realized what had happened, found the missing information, and sent it to National Headquarters, resulting in a revised Scorecard that was "not nearly as dire as the initial report." Id.

Gordineer reviewed the job descriptions and performance appraisals for staff, including Plaintiff. Defs.' SMF ¶ 74. Gordineer did not believe that the Chapter, given its size, required an employee focusing a substantial amount of time on human resources, particularly in light of the availability of regionally-shared services. Id . ¶¶ 77, 80-81. Gordineer informed Plaintiff that she should spend less time on human resources and more time on fundraising. Id . ¶¶ 82-85. Plaintiff's 2007 performance appraisal stated that Plaintiff "must increase her attention to development and should be spending 60-70% of her time on fundraising." Id . ¶ 87. It further stated that "a new executive will be likely to hold her accountable for fundraising outcomes, which has not been the case in the past." Id.

Plaintiff states that the Chapter had significant human resources needs due to its operation and staffing of a homeless shelter, something not all chapters did. Pl.'s Aff. ¶ 118. According to her, the 2007 performance appraisal was the only occasion when Gordineer told her she would need to increase the amount of time focused on financial development. Id . ¶ 136.

F. Yarbrough

On December 3, 2007, Yarbrough became the new Executive Director of the Chapter. Defs.' SMF ¶ 94. In the process of recruiting and hiring Yarbrough, the Board informed her that the Chapter required change, including improved fundraising and visibility. Id . ¶¶ 100-02.

During her first month at the Chapter, Yarbrough reviewed employees' jobs descriptions and met with employees to discuss their jobs. Defs.' SMF ¶¶ 105-06. Defendants state that Yarbrough met with Plaintiff during her first month at the Chapter. Id . 107. Plaintiff denies that, and states that Yarbrough did not meet with her regarding her position until late February 2008, nearly three months after Yarbrough became Executive Director. Pl.'s Aff. ¶ 174.

Defendants state that Yarbrough expected Plaintiff to work with her on fundraising and development but that Plaintiff was not doing so, instead concentrating the majority of her time on human resources. SMF ¶¶ 108-110. In Yarbrough's view, Plaintiff's concentration on human resources ...

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